Scotus Ruling - Johnson v Us

1 (Slip Opinion) OCTOBER TERM, 2014

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

JOHNSON v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 137120. Argued November 5, 2014Reargued April 20, 2015Decided June 26, 2015

After petitioner Johnson pleaded guilty to being a felon in possession ofa firearm, see 18 U. S. C. 922(g), the Government sought an en-hanced sentence under the Armed Career Criminal Act, which im-poses an increased prison term upon a defendant with three prior convictions for a violent felony, 924(e)(1), a term defined by924(e)(2)(B)s residual clause to include any felony that involvesconduct that presents a serious potential risk of physical injury to another. The Government argued that Johnsons prior conviction forunlawful possession of a short-barreled shotgun met this definition,making the third conviction of a violent felony. This Court had pre-viously pronounced upon the meaning of the residual clause in James v. United States, 550 U. S. 192; Begay v. United States, 553 U. S. 137; Chambers v. United States, 555 U. S. 122; and Sykes v. United States, 564 U. S. 1, and had rejected suggestions by dissenting Justices inboth James and Sykes that the clause is void for vagueness. Here, the District Court held that the residual clause does cover unlawful possession of a short-barreled shotgun, and imposed a 15-year sen-tence under ACCA. The Eighth Circuit affirmed.

Held: Imposing an increased sentence under ACCAs residual clauseviolates due process. Pp. 315.

(a) The Government violates the Due Process Clause when it takes away someones life, liberty, or property under a criminal law sovague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Kolender v. Lawson, 461 U. S. 352, 357358. Courts must use the categorical approach when deciding whether an offense is a violent felony, looking only to the fact that the defendant has been convicted

2 JOHNSON v. UNITED STATES

Syllabus

of crimes falling within certain categories, and not to the facts under-lying the prior convictions. Taylor v. United States, 495 U. S. 575, 600. Deciding whether the residual clause covers a crime thus re-quires a court to picture the kind of conduct that the crime involvesin the ordinary case, and to judge whether that abstraction pre-sents a serious potential risk of physical injury. James, supra, at 208. Pp. 35.

(b) Two features of the residual clause conspire to make it uncon-stitutionally vague. By tying the judicial assessment of risk to a judi-cially imagined ordinary case of a crime rather than to real-worldfacts or statutory elements, the clause leaves grave uncertainty abouthow to estimate the risk posed by a crime. See James, supra, at 211. At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. Taken together, these uncertainties produce more unpredictability and arbi-trariness than the Due Process Clause tolerates. This Courts re-peated failure to craft a principled standard out of the residual clause and the lower courts persistent inability to apply the clause in a con-sistent way confirm its hopeless indeterminacy. Pp. 510.

(c) This Courts cases squarely contradict the theory that the resid-ual clause is constitutional merely because some underlying crimes may clearly pose a serious potential risk of physical injury to another. See, e.g., United States v. L. Cohen Grocery Co., 255 U. S. 81, 89. Holding the residual clause void for vagueness does not put other criminal laws that use terms such as substantial risk in doubt, be-cause those laws generally require gauging the riskiness of an indi-viduals conduct on a particular occasion, not the riskiness of an ide-alized ordinary case of the crime. Pp. 1013.

(d) The doctrine of stare decisis does not require continued adher-ence to James and Sykes. Experience leaves no doubt about the una-voidable uncertainty and arbitrariness of adjudication under the re-sidual clause. James and Sykes opined about vagueness without fullbriefing or argument. And continued adherence to those decisions would undermine, rather than promote, the goals of evenhandedness,predictability, and consistency served by stare decisis. Pp. 1315.

526 Fed. Appx. 708, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. KENNEDY, J., and THOMAS, J., filed opinions concurring in the judgment. ALITO, J., filed a dissenting opinion.

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Opinion of the Court

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No. 137120

SAMUEL JAMES JOHNSON, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

[June 26, 2015]

JUSTICE SCALIA delivered the opinion of the Court. Under the Armed Career Criminal Act of 1984, a de

fendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a violent felony, a term defined to include any felony that involves conduct that presentsa serious potential risk of physical injury to another. 18 U. S. C. 924(e)(2)(B). We must decide whether this partof the definition of a violent felony survives the Constitutions prohibition of vague criminal laws.

I Federal law forbids certain peoplesuch as convicted

felons, persons committed to mental institutions, and drugusersto ship, possess, and receive firearms. 922(g). In general, the law punishes violation of this ban by up to 10years imprisonment. 924(a)(2). But if the violator has three or more earlier convictions for a serious drug offense or a violent felony, the Armed Career Criminal Act increases his prison term to a minimum of 15 years and a maximum of life. 924(e)(1); Johnson v. United States, 559 U. S. 133, 136 (2010). The Act defines violent



felony as follows: any crime punishable by imprisonment for a term exceeding one year . . . that

(i) has as an element the use, attempted use, or threatened use of physical force against the person ofanother; or

(ii) is burglary, arson, or extortion, involves use ofexplosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 924(e)(2)(B) (emphasis added).

The closing words of this definition, italicized above, have come to be known as the Acts residual clause. Since 2007, this Court has decided four cases attempting to discern itsmeaning. We have held that the residual clause (1) covers Floridas offense of attempted burglary, James v. United States, 550 U. S. 192 (2007); (2) does not cover New Mexicos offense of driving under the influence, Begay v. United States, 553 U. S. 137 (2008); (3) does not cover Illinois offense of failure to report to a penal institution, Cham-bers v. United States, 555 U. S. 122 (2009); and (4) does cover Indianas offense of vehicular flight from a law-enforcement officer, Sykes v. United States, 564 U. S. 1 (2011). In both James and Sykes, the Court rejected suggestions by dissenting Justices that the residual clauseviolates the Constitutions prohibition of vague criminallaws. Compare James, 550 U. S., at 210, n. 6, with id., at 230 (SCALIA, J., dissenting); compare Sykes, 564 U. S., at ___ (slip op., at 1314), with id., at ___ (SCALIA, J., dissenting) (slip op., at 68).

This case involves the application of the residual clauseto another crime, Minnesotas offense of unlawful possession of a short-barreled shotgun. Petitioner Samuel Johnson is a felon with a long criminal record. In 2010, the Federal Bureau of Investigation began to monitor himbecause of his involvement in a white-supremacist organi

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zation that the Bureau suspected was planning to commit acts of terrorism. During the investigation, Johnsondisclosed to undercover agents that he had manufactured explosives and that he planned to attack the Mexicanconsulate in Minnesota, progressive bookstores, and liberals. Revised Presentence Investigation in No.0:12CR00104001 (D. Minn.), p. 15, 16. Johnson showed the agents his AK47 rifle, several semiautomatic firearms, and over 1,000 rounds of ammunition.

After his eventual arrest, Johnson pleaded guilty tobeing a felon in possession of a firearm in violation of 922(g). The Government requested an enhanced sentence under the Armed Career Criminal Act. It arguedthat three of Johnsons previous offensesincluding unlawful possession of a short-barreled shotgun, see Minn. Stat. 609.67 (2006)qualified as violent felonies. The District Court agreed and sentenced Johnson to a 15-year prison term under the Act. The Court of Appeals affirmed.526 Fed. Appx. 708 (CA8 2013) (per curiam). We grantedcertiorari to decide whether Minnesotas offense of unlawful possession of a short-barreled shotgun ranks as aviolent felony under the residual clause. 572 U. S. ___ (2014). We later asked the parties to present reargumentaddressing the compatibility of the residual clause with the Constitutions prohibition of vague criminal laws. 574 U. S. ___ (2015).

II The Fifth Amendment provides that [n]o person shall

. . . be deprived of life, liberty, or property, without dueprocess of law. Our cases establish that the Government violates this guarantee by taking away someones life,liberty, or property under a criminal law so vague that itfails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Kolender v. Lawson, 461 U. S. 352, 357358



(1983). The prohibition of vagueness in criminal statutesis a well-recognized requirement, consonant alike withordinary notions of fair play and the settled rules of law, and a statute that flouts it violates the first essential of due process. Connally v. General Constr. Co., 269 U. S. 385, 391 (1926). These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences. United States v. Batchelder, 442 U. S. 114, 123 (1979).

In Taylor v. United States, 495 U. S. 575, 600 (1990),this Court held that the Armed Career Criminal Act requires courts to use a framework known as the categorical approach when deciding whether an offense is burglary, arson, or extortion, involves use of explosives, or otherwiseinvolves conduct that presents a serious potential risk of physical injury to another. Under the categorical approach, a court assesses whether a crime qualifies as a violent felony in terms of how the law defines the offense and not in terms of how an individual offender might havecommitted it on a particular occasion. Begay, supra, at 141.

Deciding whether the residual clause covers a crimethus requires a court to picture the kind of conduct thatthe crime involves in the ordinary case, and to judge whether that abstraction presents a serious potential risk of physical injury. James, supra, at 208. The courts task goes beyond deciding whether creation of risk is an element of the crime. That is so because, unlike the part ofthe definition of a violent felony that asks whether the crime has as an element the use . . . of physical force, the residual clause asks whether the crime involves conduct that presents too much risk of physical injury. What is more, the inclusion of burglary and extortion among theenumerated offenses preceding the residual clause confirms that the courts task also goes beyond evaluating the chances that the physical acts that make up the crime will

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injure someone. The act of making an extortionate demand or breaking and entering into someones home does not, in and of itself, normally cause physical injury.Rather, risk of injury arises because the extortionist mightengage in violence after making his demand or because theburglar might confront a resident in the home after breaking and entering.

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendants sentenceunder the clause denies due process of law.

A Two features of the residual clause conspire to make it

unconstitutionally vague. In the first place, the residualclause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment ofrisk to a judicially imagined ordinary case of a crime, notto real-world facts or statutory elements. How does one go about deciding what kind of conduct the ordinary case ofa crime involves? A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct? United States v. Mayer, 560 F. 3d 948, 952 (CA92009) (Kozinski, C. J., dissenting from denial of rehearing en banc). To take an example, does the ordinary instance of witness tampering involve offering a witness a bribe? Or threatening a witness with violence? Critically, picturing the criminals behavior is not enough; as we have already discussed, assessing potential risk seemingly requires the judge to imagine how the idealized ordinary case of the crime subsequently plays out. James illustrates how speculative (and how detached from statutory elements) this enterprise can become. Explaining why attempted burglary poses a serious potential risk of physical injury, the Court said: An armed would-be burglar



may be spotted by a police officer, a private security guard,or a participant in a neighborhood watch program. Or a homeowner . . . may give chase, and a violent encounter may ensue. 550 U. S., at 211. The dissent, by contrast,asserted that any confrontation that occurs during an attempted burglary is likely to consist of nothing morethan the occupants yelling Whos there? from his window, and the burglars running away. Id., at 226 (opinion of SCALIA, J.). The residual clause offers no reliable way to choose between these competing accounts of what ordinary attempted burglary involves.

At the same time, the residual clause leaves uncertaintyabout how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise serious potential risk standard to real-world facts; it is quiteanother to apply it to a judge-imagined abstraction. Byasking whether the crime otherwise involves conduct that presents a serious potential risk, moreover, the residual clause forces courts to interpret serious potential risk in light of the four enumerated crimesburglary, arson, extortion, and crimes involving the use of explosives. These offenses are far from clear in respect to the degreeof risk each poses. Begay, 553 U. S., at 143. Does the ordinary burglar invade an occupied home by night or anunoccupied home by day? Does the typical extortionistthreaten his victim in person with the use of force, or does he threaten his victim by mail with the revelation of embarrassing personal information? By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.

This Court has acknowledged that the failure of persistent efforts . . . to establish a standard can provide evidence of vagueness. United States v. L. Cohen Grocery

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Co., 255 U. S. 81, 91 (1921). Here, this Courts repeatedattempts and repeated failures to craft a principled and objective standard out of the residual clause confirm itshopeless indeterminacy. Three of the Courts previousfour decisions about the clause concentrated on the level of risk posed by the crime in question, though in each casewe found it necessary to resort to a different ad hoc test to guide our inquiry. In James, we asked whether the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenses, namely completed burglary; we concluded that it was. 550 U. S., at 203. That rule takes care of attempted burglary,but offers no help at all with respect to the vast majority ofoffenses, which have no apparent analog among the enumerated crimes. Is, for example, driving under the influence of alcohol more analogous to burglary, arson, extortion, or a crime involving use of explosives? Id., at 215 (SCALIA, J., dissenting).

Chambers, our next case to focus on risk, relied principally on a statistical report prepared by the SentencingCommission to conclude that an offender who fails to report to prison is not significantly more likely thanothers to attack, or physically to resist, an apprehender,thereby producing a serious potential risk of physicalinjury. 555 U. S., at 128129. So much for failure to report to prison, but what about the tens of thousands of federal and state crimes for which no comparable reportsexist? And even those studies that are available might suffer from methodological flaws, be skewed toward rarer forms of the crime, or paint widely divergent pictures ofthe riskiness of the conduct that the crime involves. See Sykes, 564 U. S., at ______ (SCALIA, J., dissenting) (slipop., at 46); id., at ___, n. 4 (KAGAN, J., dissenting) (slip op., at 6, n. 4).

Our most recent case, Sykes, also relied on statistics, though only to confirm the commonsense conclusion that



Indianas vehicular flight crime is a violent felony. Id., at ___ (majority opinion) (slip op., at 8). But common sense is a much less useful criterion than it soundsas Sykes itself illustrates. The Indiana statute involved in that case covered everything from provoking a high-speed car chase to merely failing to stop immediately after seeing a policeofficers signal. See id., at ___ (KAGAN, J., dissenting) (slipop., at 34). How does common sense help a federal court discern where the ordinary case of vehicular flight in Indiana lies along this spectrum? Common sense has not even produced a consistent conception of the degree of risk posed by each of the four enumerated crimes; there is noreason to expect it to fare any better with respect to thousands of unenumerated crimes. All in all, James, Cham-bers, and Sykes failed to establish any generally applicable test that prevents the risk comparison required by the residual clause from devolving into guesswork and intuition.

The remaining case, Begay, which preceded Chambers and Sykes, took an entirely different approach. The Court held that in order to qualify as a violent felony under the residual clause, a crime must resemble the enumerated offenses in kind as well as in degree of risk posed. 553 U. S., at 143. The Court deemed drunk driving insufficiently similar to the listed crimes, because it typicallydoes not involve purposeful, violent, and aggressive conduct. Id., at 144145 (internal quotation marks omitted). Alas, Begay did not succeed in bringing clarity to themeaning of the residual clause. It did not (and could not) eliminate the need to imagine the kind of conduct typicallyinvolved in a crime. In addition, the enumerated crimes are not much more similar to one another in kind than in degree of risk posed, and the concept of aggressive conduct is far from clear. Sykes criticized the purposeful,violent, and aggressive test as an addition to the statutory text, explained that levels of risk would normally be

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dispositive, and confined Begay to strict liability, negligence, and recklessness crimes. 564 U. S., at ______ (slip op., at 1011).

The present case, our fifth about the meaning of theresidual clause, opens a new front of uncertainty. When deciding whether unlawful possession of a short-barreled shotgun is a violent felony, do we confine our attention to the risk that the shotgun will go off by accident while in someones possession? Or do we also consider the possibility that the person possessing the shotgun will later use itto commit a crime? The inclusion of burglary and extortion among the enumerated offenses suggests that a crimemay qualify under the residual clause even if the physicalinjury is remote from the criminal act. But how remote is too remote? Once again, the residual clause yields no answers.

This Court is not the only one that has had troublemaking sense of the residual clause. The clause has created numerous splits among the lower federal courts,where it has proved nearly impossible to apply consistently. Chambers, 555 U. S., at 133 (ALITO, J., concurring in judgment). The most telling feature of the lower courts decisions is not division about whether the residual clause covers this or that crime (even clear laws produce closecases); it is, rather, pervasive disagreement about thenature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider. Some judgeshave concluded that deciding whether conspiracy is a violent felony requires evaluating only the dangers posedby the simple act of agreeing [to commit a crime], United States v. Whitson, 597 F. 3d 1218, 1222 (CA11 2010) (per curiam); others have also considered the probability that the agreement will be carried out, United States v. White, 571 F. 3d 365, 370371 (CA4 2009). Some judges haveassumed that the battery of a police officer (defined toinclude the slightest touching) could explode into violence



and result in physical injury, United States v. Williams, 559 F. 3d 1143, 1149 (CA10 2009); others have felt that itdo[es] a great disservice to law enforcement officers toassume that they would explod[e] into violence ratherthan rely on their training and experience to determine the best method of responding, United States v. Cart-horne, 726 F. 3d 503, 514 (CA4 2013). Some judges considering whether statutory rape qualifies as a violent felony have concentrated on cases involving a perpetratormuch older than the victim, United States v. Daye, 571 F. 3d 225, 230231 (CA2 2009); others have tried to account for the possibility that the perpetrator and thevictim [might be] close in age, United States v. McDonald, 592 F. 3d 808, 815 (CA7 2010). Disagreements like thesego well beyond disputes over matters of degree.

It has been said that the life of the law is experience. Nine years experience trying to derive meaning from theresidual clause convinces us that we have embarked upona failed enterprise. Each of the uncertainties in the residual clause may be tolerable in isolation, but their summakes a task for us which at best could be only guesswork. United States v. Evans, 333 U. S. 483, 495 (1948).Invoking so shapeless a provision to condemn someone toprison for 15 years to life does not comport with the Constitutions guarantee of due process.

B The Government and the dissent claim that there will

be straightforward cases under the residual clause, because some crimes clearly pose a serious potential risk of physical injury to another. See post, at 1415 (opinion of ALITO, J.). True enough, though we think many of the cases the Government and the dissent deem easy turn outnot to be so easy after all. Consider just one of the Governments examples, Connecticuts offense of rioting at a correctional institution. See United States v. Johnson,

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616 F. 3d 85 (CA2 2010). That certainly sounds like aviolent felonyuntil one realizes that Connecticut defines this offense to include taking part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of the prison. Conn. Gen. Stat. 53a179b(a) (2012). Who is to say which the ordinary disorder most closely resemblesa full-fledged prisonriot, a food-fight in the prison cafeteria, or a passive and nonviolent [act] such as disregarding an order to move, Johnson, 616 F. 3d, at 95 (Parker, J., dissenting)?

In all events, although statements in some of our opinions could be read to suggest otherwise, our holdingssquarely contradict the theory that a vague provision isconstitutional merely because there is some conduct thatclearly falls within the provisions grasp. For instance, we have deemed a law prohibiting grocers from charging an unjust or unreasonable rate void for vaguenesseventhough charging someone a thousand dollars for a pound of sugar would surely be unjust and unreasonable. L. Cohen Grocery Co., 255 U. S., at 89. We have similarly deemed void for vagueness a law prohibiting people on sidewalks from conduct[ing] themselves in a manner annoying to persons passing byeven though spitting insomeones face would surely be annoying. Coates v. Cin-cinnati, 402 U. S. 611 (1971). These decisions refute any suggestion that the existence of some obviously risky crimes establishes the residual clauses constitutionality.

Resisting the force of these decisions, the dissent insiststhat a statute is void for vagueness only if it is vague inall its applications. Post, at 1. It claims that the prohibition of unjust or unreasonable rates in L. Cohen Grocerywas vague in all applications, even though one can easily envision rates so high that they are unreasonable by any measure. Post, at 16. It seems to us that the dissents supposed requirement of vagueness in all applications isnot a requirement at all, but a tautology: If we hold a



statute to be vague, it is vague in all its applications (andnever mind the reality). If the existence of some clearly unreasonable rates would not save the law in L. Cohen Grocery, why should the existence of some clearly risky crimes save the residual clause?

The Government and the dissent next point out that dozens of federal and state criminal laws use terms like substantial risk, grave risk, and unreasonable risk, suggesting that to hold the residual clause unconstitutionalis to place these provisions in constitutional doubt. See post, at 78. Not at all. Almost none of the cited laws links a phrase such as substantial risk to a confusing list of examples. The phrase shades of red, standing alone,does not generate confusion or unpredictability; but thephrase fire-engine red, light pink, maroon, navy blue, or colors that otherwise involve shades of red assuredly does so. James, 550 U. S., at 230, n. 7 (SCALIA, J., dissenting).More importantly, almost all of the cited laws require gauging the riskiness of conduct in which an individualdefendant engages on a particular occasion. As a generalmatter, we do not doubt the constitutionality of laws thatcall for the application of a qualitative standard such assubstantial risk to real-world conduct; the law is full of instances where a mans fate depends on his estimating rightly . . . some matter of degree, Nash v. United States, 229 U. S. 373, 377 (1913). The residual clause, however, requires application of the serious potential risk standard to an idealized ordinary case of the crime. Because the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect, thisabstract inquiry offers significantly less predictabilitythan one [t]hat deals with the actual, not with an imaginary condition other than the facts. International Har-vester Co. of America v. Kentucky, 234 U. S. 216, 223 (1914).

Finally, the dissent urges us to save the residual clause

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from vagueness by interpreting it to refer to the risk posedby the particular conduct in which the defendant engaged,not the risk posed by the ordinary case of the defendantscrime. See post, at 913. In other words, the dissent suggests that we jettison for the residual clause (thoughnot for the enumerated crimes) the categorical approachadopted in Taylor, see 495 U. S., at 599602, and reaffirmed in each of our four residual-clause cases, see James, 550 U. S., at 202; Begay, 553 U. S., at 141; Cham-bers, 555 U. S., at 125; Sykes, 564 U. S., ___ (slip op., at 5). We decline the dissents invitation. In the first place, theGovernment has not asked us to abandon the categoricalapproach in residual-clause cases. In addition, Taylor had good reasons to adopt the categorical approach, reasons that apply no less to the residual clause than to the enumerated crimes. Taylor explained that the relevant partof the Armed Career Criminal Act refers to a person who . . . has three previous convictions fornot a person who has committedthree previous violent felonies or drug offenses. 495 U. S., at 600. This emphasis on convictionsindicates that Congress intended the sentencing court to look only to the fact that the defendant had been convictedof crimes falling within certain categories, and not to the facts underlying the prior convictions. Ibid. Taylor also pointed out the utter impracticability of requiring a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction. For example,if the original conviction rested on a guilty plea, no recordof the underlying facts may be available. [T]he onlyplausible interpretation of the law, therefore, requires use of the categorical approach. Id., at 602.

C That brings us to stare decisis. This is the first case in

which the Court has received briefing and heard argumentfrom the parties about whether the residual clause is void



for vagueness. In James, however, the Court stated in a footnote that it was not persuaded by [the principal dissents] suggestion . . . that the residual provision is unconstitutionally vague. 550 U. S., at 210, n. 6. In Sykes, the Court again rejected a dissenting opinions claim of vagueness. 564 U. S., at ______ (slip op., at 1314).

The doctrine of stare decisis allows us to revisit an earlier decision where experience with its application reveals that it is unworkable. Payne v. Tennessee, 501 U. S. 808, 827 (1991). Experience is all the more instructive whenthe decision in question rejected a claim of unconstitutional vagueness. Unlike other judicial mistakes that need correction, the error of having rejected a vagueness challenge manifests itself precisely in subsequent judicialdecisions: the inability of later opinions to impart the predictability that the earlier opinion forecast. Here, the experience of the federal courts leaves no doubt about the unavoidable uncertainty and arbitrariness of adjudicationunder the residual clause. Even after Sykes tried to clarifythe residual clauses meaning, the provision remains ajudicial morass that defies systemic solution, a black hole of confusion and uncertainty that frustrates any effort to impart some sense of order and direction. United States v. Vann, 660 F. 3d 771, 787 (CA4 2011) (Agee, J., concurring).

This Courts cases make plain that even decisions rendered after full adversarial presentation may have to yieldto the lessons of subsequent experience. See, e.g., United States v. Dixon, 509 U. S. 688, 711 (1993); Payne, 501 U. S., at 828830 (1991). But James and Sykes opinedabout vagueness without full briefing or argument on that issuea circumstance that leaves us less constrained to follow precedent, Hohn v. United States, 524 U. S. 236, 251 (1998). The brief discussions of vagueness in James and Sykes homed in on the imprecision of the phraseserious potential risk; neither opinion evaluated the

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uncertainty introduced by the need to evaluate the riskiness of an abstract ordinary case of a crime. 550 U. S., at 210, n. 6; 564 U. S., at ___ (slip op., at 1314). And departing from those decisions does not raise any concerns about upsetting private reliance interests.

Although it is a vital rule of judicial self-government, stare decisis does not matter for its own sake. It matters because it promotes the evenhanded, predictable, and consistent development of legal principles. Payne, supra, at 827. Decisions under the residual clause have proved to be anything but evenhanded, predictable, or consistent.Standing by James and Sykes would undermine, rather than promote, the goals that stare decisis is meant to serve.

* * * We hold that imposing an increased sentence under the

residual clause of the Armed Career Criminal Act violates the Constitutions guarantee of due process. Our contraryholdings in James and Sykes are overruled. Todays decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Acts definition of a violent felony.

We reverse the judgment of the Court of Appeals for the Eighth Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.

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KENNEDY, J., concurring in judgment


No. 137120



[June 26, 2015]

JUSTICE KENNEDY, concurring in the judgment. In my view, and for the reasons well stated by JUSTICE

ALITO in dissent, the residual clause of the Armed Career Criminal Act is not unconstitutionally vague under thecategorical approach or a record-based approach. On the assumption that the categorical approach ought to still control, and for the reasons given by JUSTICE THOMAS in Part I of his opinion concurring in the judgment, Johnsonsconviction for possession of a short-barreled shotgun does not qualify as a violent felony.

For these reasons, I concur in the judgment.

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THOMAS, J., concurring in judgment


No. 137120



[June 26, 2015]

JUSTICE THOMAS, concurring in the judgment. I agree with the Court that Johnsons sentence cannot

stand. But rather than use the Fifth Amendments Due Process Clause to nullify an Act of Congress, I would resolve this case on more ordinary grounds. Under con-ventional principles of interpretation and our precedents,the offense of unlawfully possessing a short-barreled shotgun does not constitute a violent felony under the residual clause of the Armed Career Criminal Act (ACCA).

The majority wants more. Not content to engage in the usual business of interpreting statutes, it holds this clause to be unconstitutionally vague, notwithstanding the fact that on four previous occasions we found it determinate enough for judicial application. As JUSTICE ALITO ex-plains, that decision cannot be reconciled with our prece-dents concerning the vagueness doctrine. See post, at 13 17 (dissenting opinion). But even if it were a closer case under those decisions, I would be wary of holding theresidual clause to be unconstitutionally vague. Although I have joined the Court in applying our modern vagueness doctrine in the past, see FCC v. Fox Television Stations, Inc., 567 U. S. ___, ______ (2012) (slip op., at 1617), I have become increasingly concerned about its origins and application. Simply put, our vagueness doctrine shares an uncomfortably similar history with substantive due pro-



cess, a judicially created doctrine lacking any basis in the Constitution.

I We could have easily disposed of this case without nulli-

fying ACCAs residual clause. Under ordinary principles of statutory interpretation, the crime of unlawfully pos-sessing a short-barreled shotgun does not constitute a violent felony under ACCA. In relevant part, that Actdefines a violent felony as a crime punishable by im-prisonment for a term exceeding one year that either

(i) has as an element the use, attempted use, or threatened use of physical force against the person ofanother; or

(ii) is burglary, arson, or extortion, involves use ofexplosives, or otherwise involves conduct that pre-sents a serious potential risk of physical injury to an-other. 18 U. S. C. 924(e)(2)(B).

The offense of unlawfully possessing a short-barreled shotgun neither satisfies the first clause of this definitionnor falls within the enumerated offenses in the second. It therefore can constitute a violent felony only if it fallswithin ACCAs so-called residual clausei.e., if it in-volves conduct that presents a serious potential risk ofphysical injury to another. 924(e)(2)(B)(ii).

To determine whether an offense falls within the resid-ual clause, we consider whether the conduct encompassedby the elements of the offense, in the ordinary case, pre-sents a serious potential risk of injury to another. James v. United States, 550 U. S. 192, 208 (2007). The specificcrimes listed in 924(e)(2)(B)(ii)arson, extortion, bur-glary, and an offense involving the use of explosivesoffer a baseline against which to measure the degree of risk a crime must present to fall within that clause. Id., at 208. Those offenses do not provide a high threshold, see id., at

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203, 207208, but the crime in question must still present a serious a significant or important risk of physical injury to be deemed a violent felony, Begay v. United States, 553 U. S. 137, 156 (2008) (ALITO, J., dis-senting); accord, Chambers v. United States, 555 U. S. 122, 128 (2009).

To qualify as serious, the risk of injury generally mustbe closely related to the offense itself. Our precedentsprovide useful examples of the close relationship thatmust exist between the conduct of the offense and the risk presented. In Sykes v. United States, 564 U. S. 1 (2011), for instance, we held that the offense of intentional vehicu-lar flight constitutes a violent felony because that conduct always triggers a dangerous confrontation, id., at ___ (slip op., at 8). As we explained, vehicular flights by defini-tional necessity occur when police are present and aredone in defiance of their instructions . . . with a vehicle that can be used in a way to cause serious potential risk ofphysical injury to another. Ibid. In James, we likewise held that attempted burglary offenses requir[ing] anovert act directed toward the entry of a structure areviolent felonies because the underlying conduct often results in a dangerous confrontation. 550 U. S., at 204, 206. But we distinguished those crimes from the moreattenuated conduct encompassed by attempt offenses that c[an] be satisfied by preparatory conduct that does not pose the same risk of violent confrontation, such as possessing burglary tools. Id., at 205, 206, and n. 4. At some point, in other words, the risk of injury from thecrime may be too attenuated for the conviction to fall within the residual clause, such as when an additional, voluntary act (e.g., the use of burglary tools to enter astructure) is necessary to bring about the risk of physical injury to another.

In light of the elements of and reported convictions forthe unlawful possession of a short-barreled shotgun, this



crime does not involv[e] conduct that presents a serious potential risk of physical injury to another, 924(e) (2)(B)(ii). The acts that form the basis of this offense are simply too remote from a risk of physical injury to fall within the residual clause.

Standing alone, the elements of this offense(1) unlaw-fully (2) possessing (3) a short-barreled shotgundo not describe inherently dangerous conduct. As a conceptualmatter, simple possession [of a firearm], even by a felon, takes place in a variety of ways (e.g., in a closet, in a store-room, in a car, in a pocket) many, perhaps most, of whichdo not involve likely accompanying violence. United States v. Doe, 960 F. 2d 221, 225 (CA1 1992). These weap-ons also can be stored in a manner posing a danger to no one, such as unloaded, disassembled, or locked away. Bythemselves, the elements of this offense indicate that the ordinary commission of this crime is far less risky thanACCAs enumerated offenses.

Reported convictions support the conclusion that merepossession of a short-barreled shotgun does not, in the ordinary case, pose a serious risk of injury to others. A few examples suffice. In one case, officers found the sawed-off shotgun locked inside a gun cabinet in an emptyhome. State v. Salyers, 858 N. W. 2d 156, 157158 (Minn. 2015). In another, the firearm was retrieved from the trunk of the defendants car. State v. Ellenberger, 543 N. W. 2d 673, 674 (Minn. App. 1996). In still another, the weapon was found missing a firing pin. State v. Johnson, 171 Wis. 2d 175, 178, 491 N. W. 2d 110, 111 (App. 1992). In these instances and others, the offense threatened no one.

The Governments theory for why this crime should nonetheless qualify as a violent felony is unpersuasive.Although it does not dispute that the unlawful possessionof a short-barreled shotgun can occur in a nondangerousmanner, the Government contends that this offense poses

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a serious risk of physical injury due to the connectionbetween short-barreled shotguns and other serious crimes.As the Government explains, these firearms are weapons not typically possessed by law-abiding citizens for lawful purposes, District of Columbia v. Heller, 554 U. S. 570, 625 (2008), but are instead primarily intended for use in criminal activity. In light of that intended use, the Gov-ernment reasons that the ordinary case of this possessionoffense will involve the use of a short-barreled shotgun ina serious crime, a scenario obviously posing a serious risk of physical injury.

But even assuming that those who unlawfully possessthese weapons typically intend to use them in a seriouscrime, the risk that the Government identifies arises not from the act of possessing the weapon, but from the act of using it. Unlike attempted burglary (at least of the type at issue in James) or intentional vehicular flightconduct that by itself often or always invites a dangerous confron-tationpossession of a short-barreled shotgun poses athreat only when an offender decides to engage in addi-tional, voluntary conduct that is not included in the ele-ments of the crime. Until this weapon is assembled, load-ed, or used, for example, it poses no risk of injury to others in and of itself. The risk of injury to others from merepossession of this firearm is too attenuated to treat thisoffense as a violent felony. I would reverse the Court of Appeals on that basis.

II As the foregoing analysis demonstrates, ACCAs resid-

ual clause can be applied in a principled manner. One would have thought this proposition well established given that we have already decided four cases addressing this clause. The majority nonetheless concludes that the oper-ation of this provision violates the Fifth Amendments DueProcess Clause.



JUSTICE ALITO shows why that analysis is wrong under our precedents. See post, at 1317 (dissenting opinion).But I have some concerns about our modern vagueness doctrine itself. Whether that doctrine is defensible under the original meaning of due process of law is a difficultquestion I leave for the another day, but the doctrineshistory should prompt us at least to examine its constitu-tional underpinnings more closely before we use it tonullify yet another duly enacted law.

A We have become accustomed to using the Due Process

Clauses to invalidate laws on the ground of vagueness. The doctrine we have developed is quite sweeping: Astatute can be impermissibly vague . . . if it fails to providepeople of ordinary intelligence a reasonable opportunity tounderstand what conduct it prohibits or if it authorizesor even encourages arbitrary and discriminatory enforce-ment. Hill v. Colorado, 530 U. S. 703, 732 (2000). Usingthis framework, we have nullified a wide range of enact-ments. We have struck down laws ranging from cityordinances, Papachristou v. Jacksonville, 405 U. S. 156, 165171 (1972), to Acts of Congress, United States v. L. Cohen Grocery Co., 255 U. S. 81, 8993 (1921). We have struck down laws whether they are penal, Lanzetta v. New Jersey, 306 U. S. 451, 452, 458 (1939), or not, Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 597604 (1967).1 We have struck down laws addressing

1 By penal, I mean laws authoriz[ing] criminal punishment as wellas those authorizing fines or forfeitures . . . [that] are enforced throughcivil rather than criminal process. Cf. C. Nelson, Statutory Interpreta-tion 108 (2011) (discussing definition of penal for purposes of rule oflenity). A law requiring termination of employment from public insti-tutions, for instance, is not penal. See Keyishian, 385 U. S., at 597 604. Nor is a law creating an obligation to pay taxes. Milwaukee County v. M. E. White Co., 296 U. S. 268, 271 (1935). Conversely, a law imposing a monetary exaction as a punishment for noncompliance with

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subjects ranging from abortion, Colautti v. Franklin, 439 U. S. 379, 390 (1979), and obscenity, Winters v. New York, 333 U. S. 507, 517520 (1948), to the minimum wage, Connally v. General Constr. Co., 269 U. S. 385, 390395 (1926), and antitrust, Cline v. Frink Dairy Co., 274 U. S. 445, 453465 (1927). We have even struck down a law using a term that has been used to describe criminal conduct in this country since before the Constitution was ratified. Chicago v. Morales, 527 U. S. 41, 51 (1999) (in-validating a loitering law); see id., at 113, and n. 10 (THOMAS, J., dissenting) (discussing a 1764 Georgia law requiring the apprehension of all able bodied persons . . . who shall be found loitering).

That we have repeatedly used a doctrine to invalidatelaws does not make it legitimate. Cf., e.g., Dred Scott v. Sandford, 19 How. 393, 450452 (1857) (stating that anAct of Congress prohibiting slavery in certain FederalTerritories violated the substantive due process rights ofslaveowners and was therefore void). This Court has a history of wielding doctrines purportedly rooted in due process of law to achieve its own policy goals, substantive due process being the poster child. See McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurringin part and concurring in judgment) (The one theme that links the Courts substantive due process precedents together is their lack of a guiding principle to distinguish fundamental rights that warrant protection from nonfun-damental rights that do not). Although our vaguenessdoctrine is distinct from substantive due process, their histories have disquieting parallels.

1 The problem of vague penal statutes is nothing new.

a regulatory mandate is penal. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ______ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 1626).



The notion that such laws may be void under the Consti-tutions Due Process Clauses, however, is a more recent development.

Before the end of the 19th century, courts addressed vagueness through a rule of strict construction of penal statutes, not a rule of constitutional law. This rule of constructionbetter known today as the rule of lenityfirst emerged in 16th-century England in reaction toParliaments practice of making large swaths of crimes capital offenses, though it did not gain broad acceptance until the following century. See Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 749 751 (1935); see also 1 L. Radzinowicz, A History of English Criminal Law and Its Administration From 1750, pp. 1011 (1948) (noting that some of the following crimes trig-gered the death penalty: marking the edges of any current coin of the kingdom, maliciously cutting any hop-binds growing on poles in any plantation of hops, and being in the company of gypsies). Courts relied on this rule of construction in refusing to apply vague capital-offense statutes to prosecutions before them. As an exam-ple of this rule, William Blackstone described a notableinstance in which an English statute imposing the death penalty on anyone convicted of stealing sheep, or other cattle was held to extend to nothing but mere sheep asth[e] general words, or other cattle, [were] looked uponas much too loose to create a capital offence. 1 Commen-taries on the Laws of England 88 (1765).2

2 At the time, the ordinary meaning of the word cattle was not lim-

ited to cows, but instead encompassed all [b]easts of pasture; not wild nor domestick. 1 S. Johnson, A Dictionary of the English Language (4th ed. 1773). Parliament responded to the judicial refusal to applythe provision to cattle by passing another statute, 15 Geo. II. c. 34,extending the [law] to bulls, cows, oxen, steers, bullocks, heifers, calves,and lambs, by name. 1 Blackstone, Commentaries on the Laws of England, at 88.

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Vague statutes surfaced on this side of the Atlantic as well. Shortly after the First Congress proposed the Bill of Rights, for instance, it passed a law providing [t]hat every person who shall attempt to trade with the Indian tribes,or be found in the Indian country with such merchandise in his possession as are usually vended to the Indians, without a license, must forfeit the offending goods. Act of July 22, 1790, ch. 33, 3, 1 Stat. 137138. At first glance,punishing the unlicensed possession of merchandise . . . usually vended to the Indians, ibid., would seem far more likely to invit[e] arbitrary enforcement, ante, at 5, than does the residual clause.

But rather than strike down arguably vague laws under the Fifth Amendment Due Process Clause, antebellum American courtslike their English predecessorssimply refused to apply them in individual cases under the rule that penal statutes should be construed strictly. See, e.g., United States v. Sharp, 27 F. Cas. 1041 (No. 16,264) (CCPa. 1815) (Washington, J.). In Sharp, for instance, several defendants charged with violating an Act rendering it a capital offense for any seaman to make a revolt in [a]ship, Act of Apr. 30, 1790, 8, 1 Stat. 114, objected thatthe offence of making a revolt, [wa]s not sufficientlydefined by this law, or by any other standard, to whichreference could be safely made; to warrant the court inpassing a sentence upon [them]. 27 F. Cas., at 1043. Justice Washington, riding circuit, apparently agreed,observing that the common definitions for the phrasemake a revolt were so multifarious, and so different that he could not avoid feeling a natural repugnance, toselecting from this mass of definitions, one, which may fix a crime upon these men, and that too of a capital nature. Ibid. Remarking that [l]aws which create crimes, ought to be so explicit in themselves, or by reference to some other standard, that all men, subject to their penalties, may know what acts it is their duty to avoid, he refused



to recommend to the jury, to find the prisoners guilty ofmaking, or endeavouring to make a revolt, however strongthe evidence may be. Ibid.

Such analysis does not mean that federal courts be-lieved they had the power to invalidate vague penal lawsas unconstitutional. Indeed, there is good evidence that courts at the time understood judicial review to consist of a refusal to give a statute effect as operative law in resolv-ing a case, a notion quite distinct from our modern prac-tice of strik[ing] down legislation. Walsh, Partial Un-constitutionality, 85 N. Y. U. L. Rev. 738, 756 (2010). The process of refusing to apply such laws appeared to occur ona case-by-case basis. For instance, notwithstanding hisdoubts expressed in Sharp, Justice Washington, writing for this Court, later rejected the argument that lowercourts could arrest a judgment under the same ship-revolt statute because it does not define the offence of endeav-ouring to make a revolt. United States v. Kelly, 11 Wheat. 417, 418 (1826). The Court explained that it is . . . competent to the Court to give a judicial definition of the offence of endeavouring to make a revolt, and thatsuch definition consists in the endeavour of the crew of a vessel, or any one or more of them, to overthrow the legit-imate authority of her commander, with intent to removehim from his command, or against his will to take posses-sion of the vessel by assuming the government and navi-gation of her, or by transferring their obedience from thelawful commander to some other person. Id., at 418419. In dealing with statutory indeterminacy, federal courtssaw themselves engaged in construction, not judicial review as it is now understood. 3

3 Early American state courts also sometimes refused to apply a lawthey found completely unintelligible, even outside of the penal context. In one antebellum decision, the Pennsylvania Supreme Court did not even attempt to apply a statute that gave the Pennsylvania state treasurer as many votes in state bank elections as were held by

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2 Although vagueness concerns played a role in the strict

construction of penal statutes from early on, there is little indication that anyone before the late 19th century be-lieved that courts had the power under the Due Process Clauses to nullify statutes on that ground. Instead, our modern vagueness doctrine materialized after the rise of substantive due process. Following the ratification of the Fourteenth Amendment, corporations began to use thatAmendments Due Process Clause to challenge state laws that attached penalties to unauthorized commercial con-duct. In addition to claiming that these laws violatedtheir substantive due process rights, these litigants be-ganwith some successto contend that such laws were unconstitutionally indefinite. In one case, a railroad company challenged a Tennessee law authorizing penal-ties against any railroad that demanded more than a just and reasonable compensation or engaged in unjust and unreasonable discrimination in setting its rates. Louis-ville & Nashville R. Co. v. Railroad Commn of Tenn., 19 F. 679, 690 (CC MD Tenn. 1884) (internal quotationmarks deleted). Without specifying the constitutional authority for its holding, the Circuit Court concluded that[n]o citizen . . . can be constitutionally subjected to penal-ties and despoiled of his property, in a criminal or quasicriminal proceeding, under and by force of such indefinite

individuals without providing guidance as to which individuals it was referring. Commonwealth v. Bank of Pennsylvania, 3 Watts & Serg. 173, 177 (1842). Concluding that it had seldom, if ever, found the language of legislation so devoid of certainty, the court withdrew the case. Ibid.; see also Drake v. Drake, 15 N. C. 110, 115 (1833) (Whethera statute be a public or a private one, if the terms in which it is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, either ministerially or judicially, it is necessarily inopera-tive). This practice is distinct from our modern vagueness doctrine,which applies to laws that are intelligible but vague.



legislation. Id., at 693 (emphasis deleted). Justice Brewerwidely recognized as a leading

spokesman for substantized due process, Gamer, JusticeBrewer and Substantive Due Process: A Conservative Court Revisited, 18 Vand. L. Rev. 615, 627 (1965)employed similar reasoning while riding circuit, though hedid not identify the constitutional source of judicial au-thority to nullify vague laws. In reviewing an Iowa law authorizing fines against railroads for charging more thana reasonable and just rate, Justice Brewer mentioned in dictum that no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and whathe may not do under it. Chicago & N. W. R. Co. v. Dey, 35 F. 866, 876 (CC SD Iowa 1888).

Constitutional vagueness challenges in this Court ini-tially met with some resistance. Although the Courtappeared to acknowledge the possibility of unconstitution-ally indefinite enactments, it repeatedly rejected vague-ness challenges to penal laws addressing railroad rates, Railroad Commn Cases, 116 U. S. 307, 336337 (1886), liquor sales, Ohio ex rel. Lloyd v. Dollison, 194 U. S. 445, 450451 (1904), and anticompetitive conduct, Nash v. United States, 229 U. S. 373, 376378 (1913); Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S. 86, 108111 (1909).

In 1914, however, the Court nullified a law on vague-ness grounds under the Due Process Clause for the first time. In International Harvester Co. of America v. Ken-tucky, 234 U. S. 216 (1914), a tobacco company brought a Fourteenth Amendment challenge against several Ken-tucky antitrust laws that had been construed to renderunlawful any combination [made] . . . for the purpose or with the effect of fixing a price that was greater or less than the real value of the article, id., at 221. The com-pany argued that by referring to real value, the laws pro-

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vided no standard of conduct that it is possible to know. Ibid. The Court agreed. Id., at 223224. Although it didnot specify in that case which portion of the Fourteenth Amendment served as the basis for its holding, ibid., it explained in a related case that the lack of a knowable standard of conduct in the Kentucky statutes violated the fundamental principles of justice embraced in the concep-tion of due process of law. Collins v. Kentucky, 234 U. S. 634, 638 (1914).

3 Since that time, the Courts application of its vagueness

doctrine has largely mirrored its application of substantivedue process. During the Lochner era, a period marked bythe use of substantive due process to strike down economic regulations, e.g., Lochner v. New York, 198 U. S. 45, 57 (1905), the Court frequently used the vagueness doctrine to invalidate economic regulations penalizing commercial activity.4 Among the penal laws it found to be impermis-sibly vague were a state law regulating the production of crude oil, Champlin Refining Co. v. Corporation Commn

4 During this time, the Court would apply its new vagueness doctrineoutside of the penal context as well. In A. B. Small Co. v. American Sugar Refining Co., 267 U. S. 233 (1925), a sugar dealer raised a defense to a breach-of-contract suit that the contracts themselves were unlawful under several provisions of the Lever Act, including one making it unlawful for any person . . . to make any unjust or unrea-sonable . . . charge in . . . dealing in or with any necessaries, or to agree with another to exact excessive prices for any necessaries, id., at 238. Applying United States v. L. Cohen Grocery Co., 255 U. S. 81 (1921),which had held that provision to be unconstitutionally vague, the Courtrejected the dealers argument. 267 U. S., at 238239. The Court explained that [i]t was not the criminal penalty that was held invalid,but the exaction of obedience to a rule or standard which was so vagueand indefinite as really to be no rule or standard at all. Id., at 239. That doctrine thus applied to penalties as well as [a]ny other means of exaction, such as declaring the transaction unlawful or stripping aparticipant of his rights under it. Ibid.



of Okla., 286 U. S. 210, 242243 (1932), a state antitrust law, Cline, 274 U. S., at 453465, a state minimum-wage law, Connally, 269 U. S., at 390395, and a federal price-control statute, L. Cohen Grocery Co., 255 U. S., at 8993.5

Around the time the Court began shifting the focus of itssubstantive due process (and equal protection) jurispru-dence from economic interests to discrete and insular minorities, see United States v. Carolene Products Co., 304 U. S. 144, 153, n. 4 (1938), the target of its vaguenessdoctrine changed as well. The Court began to use thevagueness doctrine to invalidate noneconomic regulations, such as state statutes penalizing obscenity, Winters, 333 U. S., at 517520, and membership in a gang, Lanzetta, 306 U. S., at 458.

Successful vagueness challenges to regulations penaliz-ing commercial conduct, by contrast, largely fell by thewayside. The Court, for instance, upheld a federal regula-tion punishing the knowing violation of an order instruct-ing drivers transporting dangerous chemicals to avoid, sofar as practicable . . . driving into or through congestedthoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings, Boyce Motor Lines, Inc. v. United States, 342 U. S. 337,

5 Vagueness challenges to laws regulating speech during this period

were less successful. Among the laws the Court found to be sufficientlydefinite included a state law making it a misdemeanor to publish, among other things, materials which shall tend to encourage or advocate disrespect for law or for any court or courts of justice, Fox v. Washington, 236 U. S. 273, 275277 (1915), a federal statute criminal-izing candidate solicitation of contributions for any political purposewhatever, United States v. Wurzbach, 280 U. S. 396, 398399 (1930), and a state prohibition on becoming a member of any organization thatadvocates using unlawful violence to effect any political change, Whitney v. California, 274 U. S. 357, 359360, 368369 (1927). But see Stromberg v. California, 283 U. S. 359, 369370 (1931) (holding state statute punishing the use of any symbol of opposition to organized government to be impermissibly vague).

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338339, 343 (1952). And notwithstanding its earlierconclusion that an Oklahoma law requiring state employ-ees and contractors to be paid not less than the current rate of per diem wages in the locality where the work is performed was unconstitutionally vague, Connally, supra, at 393, the Court found sufficiently definite a fed-eral law forbidding radio broadcasting companies from attempting to compel by threat or duress a licensee to hire persons in excess of the number of employees needed bysuch licensee to perform actual services, United States v. Petrillo, 332 U. S. 1, 3, 67 (1947).

In more recent times, the Courts substantive due pro-cess jurisprudence has focused on abortions, and ourvagueness doctrine has played a correspondingly signifi-cant role. In fact, our vagueness doctrine served as the basis for the first draft of the majority opinion in Roe v. Wade, 410 U. S. 113 (1973), on the theory that laws pro-hibiting all abortions save for those done for the purposeof saving the life of the mother forced abortionists toguess when this exception would apply on penalty of con-viction. See B. Schwartz, The Unpublished Opinions of the Burger Court 116118 (1988) (reprinting first draft of Roe). Roe, of course, turned out as a substantive due process opinion. See 410 U. S., at 164. But since then, the Court has repeatedly deployed the vagueness doctrine tonullify even mild regulations of the abortion industry. See Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 451452 (1983) (nullifying law requiring thatthe remains of the unborn child [be] disposed of in a hu-mane and sanitary manner ); Colautti, 439 U. S., at 381 (nullifying law mandating abortionists adhere to a pre-scribed standard of care if there is sufficient reason to believe that the fetus may be viable ).6

6 All the while, however, the Court has rejected vagueness challenges

to laws punishing those on the other side of the abortion debate. When



In one of our most recent decisions nullifying a law on vagueness grounds, substantive due process was againlurking in the background. In Morales, a plurality of this Court insisted that the freedom to loiter for innocent purposes is part of the liberty protected by the Due Pro-cess Clause of the Fourteenth Amendment, 527 U. S., at 53, a conclusion that colored its analysis that an ordinance prohibiting loitering was unconstitutionally indetermi-nate, see id., at 55 (When vagueness permeates the textof a penal law infring[ing] on constitutionally protectedrights, it is subject to facial attack).

I find this history unsettling. It has long been under-stood that one of the problems with holding a statute void for indefiniteness is that indefiniteness . . . is itself an indefinite concept, Winters, supra, at 524 (Frankfurter, J.,dissenting), and we as a Court have a bad habit of using indefinite conceptsespecially ones rooted in due pro-cessto invalidate democratically enacted laws.

B It is also not clear that our vagueness doctrine can be

reconciled with the original understanding of the term due process of law. Our traditional justification for thisdoctrine has been the need for notice: A conviction fails to comport with due process if the statute under which it isobtained fails to provide a person of ordinary intelligence fair notice of what is prohibited. United States v. Wil-liams, 553 U. S. 285, 304 (2008); accord, ante, at 3. Pre-sumably, that justification rests on the view expressed in

it comes to restricting the speech of abortion opponents, the Court has dismissed concerns about vagueness with the observation that we can never expect mathematical certainty from our language, Hill v. Colorado, 530 U. S. 703, 733 (2000), even though such restrictions arearguably at least as imprecise as criminal prohibitions on speech the Court has declared void for vagueness in past decades, id., at 774 (KENNEDY, J., dissenting).

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Murrays Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856), that due process of law constrains thelegislative branch by guaranteeing usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, andwhich are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country, id., at 277. That justification assumes further that providing a person of ordinary intelligence [with] fair notice of what is prohibited, Williams, supra, at 304, is one such usage or mode.7

To accept the vagueness doctrine as founded in ourConstitution, then, one must reject the possibility thatthe Due Process Clause requires only that our Govern-ment must proceed according to the law of the landthat is, according to written constitutional and statutory provi-sions, which may be all that the original meaning of this provision demands. Hamdi v. Rumsfeld, 542 U. S. 507, 589 (2004) (THOMAS, J., dissenting) (some internal quota-tion marks omitted); accord, Turner v. Rogers, 564 U. S.

7 As a general matter, we should be cautious about relying on general theories of fair notice in our due process jurisprudence, as they have been exploited to achieve particular ends. In BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996), for instance, the Court held that the Due Process Clause imposed limits on punitive damages because the Clause guaranteed that a person receive fair notice not only of theconduct that will subject him to punishment, but also of the severity ofthe penalty that a State may impose, id., at 574. That was true even though when the Fourteenth Amendment was adopted, punitivedamages were undoubtedly an established part of the American com-mon law of torts, and no particular procedures were deemed neces-sary to circumscribe a jurys discretion regarding the award of suchdamages, or their amount. Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 2627 (1991) (SCALIA, J., concurring in judgment). Even under the view of the Due Process Clause articulated in Murrays Lessee, then, we should not allow nebulous principles to supplant more specific, historically grounded rules. See 499 U. S., at 3738 (opinion of SCALIA, J.).



___, ___ (2011) (THOMAS, J., dissenting) (slip op., at 2).Although Murrays Lessee stated the contrary, 18 How., at276, a number of scholars and jurists have concluded thatconsiderable historical evidence supports the position that due process of law was a separation-of-powers con-cept designed as a safeguard against unlicensed executiveaction, forbidding only deprivations not authorized bylegislation or common law. D. Currie, The Constitution in the Supreme Court: The First Hundred Years 17891888, p. 272 (1985); see also, e.g., In re Winship, 397 U. S. 358, 378382 (1970) (Black, J., dissenting). Others have disagreed. See, e.g., Chapman & McConnell, Due Processas Separation of Powers, 121 Yale L. J. 1672, 1679 (2012) (arguing that, as originally understood, the principle of due process required, among other things, that statutesthat purported to empower the other branches to deprivepersons of rights without adequate procedural guarantees[be] subject to judicial review).

I need not choose between these two understandings of due process of law in this case. JUSTICE ALITO explainswhy the majoritys decision is wrong even under our prec-edents. See post, at 1317 (dissenting opinion). And more generally, I adhere to the view that [i]f any fool wouldknow that a particular category of conduct would be with-in the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by thelaw, the enactment is not unconstitutional on its face, Morales, supra, at 112 (THOMAS, J., dissenting), and there is no question that ACCAs residual clause meets thatdescription, see ante, at 10 (agreeing with the Government that there will be straightforward cases under the resid-ual clause).

* * * I have no love for our residual clause jurisprudence: As I

observed when we first got into this business, the Sixth

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Amendment problem with allowing district courts to conduct factfinding to determine whether an offense is a violent felony made our attempt to construe the residualclause an unnecessary exercise. James, 550 U. S., at 231 (THOMAS, J., dissenting). But the Court rejected myargument, choosing instead to begin that unnecessary exercise. I see no principled way that, four cases later, the Court can now declare that the residual clause has become too indeterminate to apply. Having damaged the residual clause through our misguided jurisprudence, we have noright to send this provision back to Congress and ask for a new one. I cannot join the Court in using the Due ProcessClause to nullify an Act of Congress that contains an unmistakable core of forbidden conduct, and I concur only in its judgment.

_________________

_________________

1 Cite as: 576 U. S. ____ (2015)

ALITO, J., dissenting


No. 137120



[June 26, 2015]

JUSTICE ALITO, dissenting. The Court is tired of the Armed Career Criminal Act of

1984 (ACCA) and in particular its residual clause. Anxious to rid our docket of bothersome residual clause cases, the Court is willing to do what it takes to get the job done.So brushing aside stare decisis, the Court holds that the residual clause is unconstitutionally vague even though we have twice rejected that very argument within the last eight years. The canons of interpretation get no greater respect. Inverting the canon that a statute should beconstrued if possible to avoid unconstitutionality, the Court rejects a reasonable construction of the residualclause that would avoid any vagueness problems, preferring an alternative that the Court finds to be unconstitutionally vague. And the Court is not stopped by the well-established rule that a statute is void for vagueness only if it is vague in all its applications. While conceding that some applications of the residual clause are straightforward, the Court holds that the clause is now void in its entirety. The Courts determination to be done with residual clause cases, if not its fidelity to legal principles, is impressive.



I

A

Petitioner Samuel Johnson (unlike his famous namesake) has led a life of crime and violence. His presentence investigation report sets out a rsum of petty and serious crimes, beginning when he was 12 years old. Johnsons adult record includes convictions for, among other things, robbery, attempted robbery, illegal possession of a sawed-off shotgun, and a drug offense.

In 2010, the Federal Bureau of Investigation (FBI) began monitoring Johnson because of his involvement with the National Socialist Movement, a white-supremacist organization suspected of plotting acts ofterrorism. In June of that year, Johnson left the group and formed his own radical organization, the Aryan Liberation Movement, which he planned to finance by counterfeiting United States currency. In the course of the Governments investigation, Johnson disclosed to undercover FBI agents that he manufactured napalm, silencers, and other explosives for his new organization. 526 Fed. Appx.708, 709 (CA8 2013) (per curiam). He also showed the agents an AK47 rifle, a semiautomatic rifle, a semiautomatic pistol, and a cache of approximately 1,100 rounds ofammunition. Later, Johnson told an undercover agent:You know Id love to assassinate some . . . hoodrats as much as the next guy, but I think we really got to stick with high priority targets. Revised Presentence Investigation Report (PSR) 15. Among the top targets that hementioned were the Mexican consulate, progressive bookstores, and individuals he viewed as liberals. PSR 16.

In April 2012, Johnson was arrested, and he was subsequently indicted on four counts of possession of a firearm by a felon and two counts of possession of ammunition bya felon, in violation of 18 U. S. C. 922(g) and 924(e). He pleaded guilty to one of the firearms counts, and the Dis

3 Cite as: 576 U. S. ____ (2015)


trict Court sentenced him to the statutory minimum of 15 years imprisonment under ACCA, based on his prior felony convictions for robbery, attempted robbery, andillegal possession of a sawed-off shotgun.

B ACCA provides a mandatory minimum sentence for

certain violations of 922(g), which prohibits the shipment, transportation, or possession of firearms or ammunition by convicted felons, persons previously committed to a mental institution, and certain others. Federal law normally provides a maximum sentence of 10 years imprisonment for such crimes. See 924(a)(2). Under ACCA, however, if a defendant convicted under 922(g) has three prior convictions for a violent felony or a serious drugoffense, the sentencing court must impose a sentence of atleast 15 years imprisonment. 924(e)(1).

ACCAs definition of a violent felony has three parts.First, a felony qualifies if it has as an element the use, attempted use, or threatened use of physical force against the person of another. 924(e)(2)(B)(i). Second, the Act specifically names four categories of qualifying felonies: burglary, arson, extortion, and offenses involving the use of explosives. See 924(e)(2)(B)(ii). Third, the Act contains what we have called a residual clause, which reaches any felony that otherwise involves conduct that presents a serious potential risk of physical injury toanother. Ibid.

The present case concerns the residual clause. The sole question raised in Johnsons certiorari petition waswhether possession of a sawed-off shotgun under Minne- sota law qualifies as a violent felony under that clause.Although Johnson argued in the lower courts that theresidual clause is unconstitutionally vague, he did not renew that argument here. Nevertheless, after oral argument, the Court raised the question of vagueness on its



own. The Court now holds that the residual clause is unconstitutionally vague in all its applications. I cannot agree.

II I begin with stare decisis. Eight years ago in James v.

United States, 550 U. S. 192 (2007), JUSTICE SCALIA, the author of todays opinion for the Court, fired an openingshot at the residual clause. In dissent, he suggested thatthe residual clause is void for vagueness. Id., at 230. The Court held otherwise, explaining that the standard in the residual clause is not so indefinite as to prevent an ordinary person from understanding its scope. Id., at 210, n. 6.

Four years later, in Sykes v. United States, 564 U. S. 1 (2011), JUSTICE SCALIA fired another round. Dissentingonce again, he argued that the residual clause is void for vagueness and rehearsed the same basic arguments that the Court now adopts. See id., at ______ (slip op., at 78); see also Derby v. United States, 564 U. S. ___, ______ (2011) (SCALIA, J., dissenting from denial of certiorari) (slip op., at 45). As in James, the Court rejected his arguments. See Sykes, 564 U. S., at ___ (slip op., at 13 14). In fact, JUSTICE SCALIA was the only Member of the Sykes Court who took the position that the residual clause could not be intelligibly applied to the offense at issue. The opinion of the Court, which five Justices joined, expressly held that the residual clause states an intelligibleprinciple and provides guidance that allows a person toconform his or her conduct to the law. Id., at ______ (slip op., at 1314) (quoting Chicago v. Morales, 527 U. S. 41, 58 (1999) (plurality opinion)). JUSTICE THOMASs concurrence, while disagreeing in part with the Courts interpretation of the residual clause, did not question itsconstitutionality. See Sykes, 564 U. S., at ___ (opinion concurring in judgment). And JUSTICE KAGANs dissent,

5 Cite as: 576 U. S. ____ (2015)


which JUSTICE GINSBURG joined, argued that a proper application of the provision required a different result.See id., at ___. Thus, eight Members of the Court found the statute capable of principled application.

It is, of course, true that [s]tare decisis is not an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828 (1991). But neither is it an empty Latin phrase. There must be good reasons for overruling a precedent, and thereis none here. Nothing has changed since our decisions in James and Sykesnothing, that is, except the Courtsweariness with ACCA cases.

Reprising an argument that JUSTICE SCALIA made to no avail in Sykes, supra, at ___ (dissenting opinion) (slip op., at 7), the Court reasons that the residual clause must be unconstitutionally vague because we have had troublesettling on an interpretation. See ante, at 7. But disagreement about the meaning and application of the clause is not new. We were divided in James and in Sykes and in our intervening decisions in Begay v. United States, 553 U. S. 137 (2008), and Chambers v. United States, 555 U. S. 122 (2009). And that pattern is not unique to ACCA; wehave been unable to come to an agreement on many recurring legal questions. The Confrontation Clause is one example that comes readily to mind. See, e.g., Williams v. Illinois, 567 U. S. ___ (2012); Bullcoming v. New Mexico, 564 U. S. ___ (2011); Melendez-Diaz v. Massachusetts, 557 U. S. 305 (2009). Our disagreements about the meaning ofthat provision do not prove that the Confrontation Clausehas no ascertainable meaning. Likewise, our disagreements on the residual clause do not prove that it is unconstitutionally vague.

The Court also points to conflicts in the decisions of the lower courts as proof that the statute is unconstitutional. See ante, at 910. The Court overstates the degree of disagreement below. For many crimes, there is no dispute that the residual clause applies. And our certiorari docket



provides a skewed picture because the decisions that weare asked to review are usually those involving issues onwhich there is at least an arguable circuit conflict. But in any event, it has never been thought that conflictinginterpretations of a statute justify judicial elimination of the statute. One of our chief responsibilities is to resolvethose disagreements, see Supreme Court Rule 10, not tostrike down the laws that create this work.

The Court may not relish the task of resolving residualclause questions on which the Circuits disagree, but theprovision has not placed a crushing burden on our docket. In the eight years since James, we have decided all of three cases involving the residual clause. See Begay, supra; Chambers, supra; Sykes, supra. Nevertheless, faced with the unappealing prospect of resolving more circuit splits on various residual clause issues, see ante, at 9, six Members of the Court have thrown in the towel. That is not responsible.

III Even if we put stare decisis aside, the Courts decision

remains indefensible. The residual clause is not unconstitutionally vague.

A The Fifth Amendment prohibits the enforcement of

vague criminal laws, but the threshold for declaring a law void for vagueness is high. The strong presumptivevalidity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty isfound in determining whether certain marginal offensesfall within their language. United States v. National Dairy Products Corp., 372 U. S. 29, 32 (1963). Rather, it is sufficient if a statute sets out an ascertainable standard. United States v. L. Cohen Grocery Co., 255 U. S. 81, 89

7 Cite as: 576 U. S. ____ (2015)


(1921). A statute is thus void for vagueness only if it wholly fails to provide a person of ordinary intelligencefair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement. United States v. Williams, 553 U. S. 285, 304 (2008).

The bar is even higher for sentencing provisions. The fair notice concerns that inform our vagueness doctrineare aimed at ensuring that a person of ordinary intelligence [has] a reasonable opportunity to know what isprohibited, so that he may act accordingly. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 498 (1982) (quoting Grayned v. City of Rockford, 408 U. S. 104, 108 (1972)). The fear is that vague laws will trap the innocent. 455 U. S., at 498. These concerns have less force when it comes to sentencing provisions, which come into play only after the defendant has been found guilty of the crime in question. Due process does not require, as Johnson oddly suggests, that a prospective criminal be able to calculate the precise penalty that aconviction would bring. Supp. Brief for Petitioner 5; see Chapman v. United States, 500 U. S. 453, 467468 (1991) (concluding that a vagueness challenge was particularlyweak since whatever debate there is would center around the appropriate sentence and not the criminality of theconduct).

B ACCAs residual clause unquestionably provides an

ascertainable standard. It defines violent felony toinclude any offense that involves conduct that presents a serious potential risk of physical injury to another. 18 U. S. C. 924(e)(2)(B)(ii). That language is by no meansincomprehensible. Nor is it unusual. There are scores of federal and state laws that employ similar standards. The Solicitor Generals brief contains a 99-page appendix



setting out some of these laws. See App. to Supp. Brief for United States; see also James, supra, at 210, n. 6. If all these laws are unconstitutionally vague, todays decision is not a blast from a sawed-off shotgun; it is a nuclear explosion.

Attempting to avoid such devastation, the Court distinguishes these laws primarily on the ground that almost all of them require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. Ante, at 12 (emphasis in original). The Court thus admits that, [a]s a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as substantial risk to real-world conduct. Ibid. Its complaint is that the residual clause requires application of the serious potential risk standard to an idealized ordinary case of the crime. Ibid. (emphasis added). Thus, according to the Court, ACCAs residual clause is unconstitutionally vague because itsstandard must be applied to an idealized ordinary case of the crime and not, like the vast majority of the laws inthe Solicitor Generals appendix, to real-world conduct.

ACCA, however, makes no reference to an idealized ordinary case of the crime. That requirement was thehandiwork of this Court in Taylor v. United States, 495 U. S. 575 (1990). And as I will show, the residual clause can reasonably be interpreted to refer to real-world conduct.1

1 The Court also says that the residual clauses reference to the enumerated offenses is confusing. Ante, at 12. But this is another argument we rejected in James v. United States, 550 U. S. 192 (2007), and Sykes v. United States, 564 U. S. 1 (2011), and it is no more persuasive now. Although the risk level varies among the enumerated offenses, all four categories of offenses involve conduct that presents a serious potential risk of harm to others. If the Courts concern is that some of the enumerated offenses do not seem especially risky, all that means is that the statute sets a low baseline level for risk. Id., at ___ (THOMAS, J., concurring in judgment) (slip op., at 2).

9 Cite as: 576 U. S. ____ (2015)


C When a statutes constitutionality is in doubt, we have

an obligation to interpret the law, if possible, to avoid theconstitutional problem. See, e.g., Edward J. DeBartolo

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